Leading constitutional law scholar and VC co-blogger Steve Calabresi has posted an interesting analysis of the Attorney General's authority to appoint interim U.S. Attorneys—and of federal judges' authority to step in and make an appointment after the expiration of an interim term. Calabresi argues that the part of the federal statute authorizing judicial appointments (28 U.S.C. § 546(d)) is unconstitutional. I often find Calabresi's analysis of constitutional issues powerful. On this particular issue, however, I disagree. Even proceeding on the originalist and textualist premises Calabresi relies on, his argument is unpersuasive.
Calabresi's argument essentially requires ignoring the text of the Constitution's Appointments Clause, the history and tradition of judicial appointments of interim U.S. Attorneys, and important Supreme Court precedents. Against this backdrop of text, history, and tradition, § 546(d) is constitutional.
In today's post, I focus on this constitutional issue. I hope to follow-up tomorrow with another post on how the statute operates in practice. Calabresi is seemingly correct that, by making repeated interim appointments, a determined Executive can block the ability of judges to make appointments. Thus, even if the statute's judicial appointment authority is constitutional, it may ultimately end up rarely being used.
